Pubdate: Wed, 15 Jun 2005
Source: Ogdensburg Journal/Advance News (NY)
Copyright: 2005 Johnson Newspaper Corp.
Contact: http://www.ogd.com/letter.htm
Website: http://www.ogd.com/
Details: http://www.mapinc.org/media/689
Author: Jonathan Jadlos
Bookmark: http://www.mapinc.org/find?237 (Drug Dogs)
Bookmark: http://www.mapinc.org/topics/charges+dropped
Bookmark: http://www.mapinc.org/topics/border+patrol

JUDGE DISMISSES BORDER PATROL SEARCH

Felony drug charges against a Hogansburg man charged with transporting
more that 70 pounds of hydroponic marijuana in April 2004 were
dismissed Monday after a Judge ruled the seizure was illegal.

On Monday, Acting St. Lawrence County Court Judge Kathleen M. Rogers
dismissed the first-degree criminal possession of marijuana count
against Brian M. White, 25, of 183 Racquette Point Road, Hogansburg.

She granted defense attorney Richard Manning's motion to suppress the
marijuana seized following a stop at a Border Patrol checkpoint.

St. Lawrence County Interim District Attorney Gary Miles had made the
motion for the dismissal after Rogers ruled the marijuana seized
following a traffic stop could not be used as evidence in the case.

White was arrested and charged with first-degree criminal possession
of marijuana on the afternoon of April 20, 2004 following a secondary
inspection at a temporary U.S. Border Patrol checkpoint on Route 11 in
the town of Dekalb.

The investigation eventually revealed White was transporting
approximately 71 pounds of marijuana in the trunk of his car at the
time of the stop.

Border Patrol Agent Cynthia Pena conducted the primary interview when
White pulled up at the checkpoint.

White, who was driving a gray 2000 Mercury Marquis with New York
license plates, gave Pena a Canadian driver's license and said he was
traveling from Massena to Syracuse for an iron workers' meeting.

Pena was instructed to send White to the side of the road for
secondary inspection by Border Patrol agent Robert Long, who viewed
White to be acting suspiciously.

Long also instructed Pena to detain the next car in line. Long said
that he witnessed White and the driver of the second car use hand
signals to communicate with each other.

The driver of the second car, a blue Chevy Impala, was Raymond White,
the brother of the operator of the first car. Questioning by a third
Border Patrol agent and a subsequent search of that vehicle were
performed but found nothing.

During questioning of Brian White by Long, White told Long he was
going to line up a job at the union hall, but could not remember the
name of the union steward he was going to meet with.

A check on White revealed that he had a suspended New York driver's
license and a prior record for larceny.

Further investigation revealed that the car White was driving belonged
to a Mr. Lazore, a name Long said he recognized from a previous drug
smuggling case.

Long called Massena based Trooper Kevin Beattie and requested a drug
dog be sent to the car. After placing the call, Long asked White to
consent to a search of his car.

White declined, saying that he had valuable speakers in the
trunk.

White was then detained for nearly 50 minutes while Long waited for
Beattie.

Upon arriving, the drug dog did an external search of the car and
alerted on the trunk lid.

When the trunk was opened, two duffel bags were found, both allegedly
contained hydroponic marijuana.

Despite the presence of the drugs, Judge Rogers dismissed the case on
the grounds that Long did not have reasonable suspicion to detain
White for as long as he did.

Rogers noted it was important to clarify the authority to conduct and
operate the checkpoint is a matter of federal constitutional law
because the stop was initiated by federal officers and their authority
for the check points derives from their particular duty to enforce
immigration laws.

But she said the legality of the detention, the dog sniff "search" and
the arrest must be guided by the Fourth Amendment and state law.

Rogers, in her ruling, indicated the stop was valid initially, and the
brief detention of White was authorized.

She pointed out the Border Patrol agent had made a request for a drug
dog search of White's vehicle even before completing his interview.

"The facts could certainly lead an experienced law enforcement officer
to suspect that there was something going on that would invite a
closer look. That, however, is not a constitutional test for valid
detention," according to the ruling.

"The fact that a motorist is named White and is driving a vehicle
owned by someone named Lazore does not establish that White was
carrying drugs. Citizens differ in their degree of nervousness in
response to questions from policemen, particularly when the questions
become accusatory or pointed in their focus. The fact that White could
not remember the name of his union steward does not establish either
that he was lying or that he had simply had a bad memory. It is simply
a piece of information," she suggested.

The ruling said when Long called for the trooper and drug dog he
clearly suspected he had a drug trafficking case. "There would be no
other reason to ask Beattie to bring the dog," Rogers wrote.

"The court finds Pena's and Long's questions through and including the
secondary inspection were appropriate to the level of information
available to them, but that neither of them had a founded suspicion of
criminal conduct afoot," she said.

Rogers ruled the agents did not have a suspicion of criminality when
they detained White for the drug dog search.

"They may have had the sort of hunch that experienced police officer
develop, but that is not enough to justify a nearly one hour detention
arising out of a checkpoint stop by Border Patrol agents," the acting
county court judge added.

"It is, of course, axiomatic that the fact that the search ultimately
produced results does not validate the procedure used." Roger's ruling
acknowledged.
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MAP posted-by: Larry Seguin